1. In 1988, defendant entered into an agreement to remove two underground storage tanks from a facility located in Mechanicsburg, Cumberland County, Pennsylvania, owned by the Mid-Atlantic Coca-Cola Bottling Company, Inc.

2. In June and July of 1988, defendant removed the two tanks, and installed a 10,000-gallon underground heating oil storage tank at the Mechanicsburg facility.

3. On October 8, 1988, Mid-Atlantic activated the furnace that was attached to the new storage tank.

4. Fuel was released (allegedly from the new tank) into the soil on the property of Mid-Atlantic, contaminating an area approximately 50 feet wide and 200 feet long.

5. Investigations into the effects of the release were conducted between 1990 and 1993.

6. In 1993, OHM Remediation Services Corporation began remediation of the site.

7. The ongoing remediation efforts have cost approximately $ 1,103,000.00 to date.

8. Plaintiff is the successor in interest to Mid-Atlantic.

III. DEFENDANT'S ARGUMENTS

This action is brought pursuant to the Pennsylvania Storage Tank Spill and Prevention Act ("the Act"), 35 Pa. Stat. Ann. §§ 6021.101 et seq. The Act was passed to protect public health and safety through a regulatory scheme for the storage of regulated substances, to provide liability for damages sustained as a result of a release, and to provide for prompt cleanup and removal after a release. 35 Pa. Stat. Ann. § 6021.102(b). The Act provides for a private cause of action to enforce the provisions of the Act and regulations promulgated under the authority of the Act. 35 Pa. Stat. Ann. § 6021.1305(c). Although the language of the Act is ambiguous on the point, the Supreme Court of Pennsylvania has held that remedies available in a private action include costs of cleanup and diminution in property value. Centolanza v. Lehigh Valley Dairies, Inc., 658 A.2d 336, 340 (Pa. 1995).

In moving for summary judgment, defendant proffers two basic contentions. First, it argues that a finding of liability on its part would require an impermissible, retroactive application of the Act. That is, the conduct complained of (installation of the new tank and the release) occurred before the effective date of the Act. Second, defendant argues that it is not one of the entities against which a private action may be brought under the Act, i.e. an "owner, operator, landowner or occupier" which is alleged to have violated the Act or related regulations.

IV. RETROACTIVITY

The release about which plaintiff complains apparently occurred between October 8 and October 10, 1988. Plaintiff became aware of the release, by its own admission, at least as early as October 10, 1988. The Act was passed on July 6, 1989, and became effective August 5, 1989. Storage Tank and Spill Prevention Act, Pub. L. No. 169, No. 32, § 101, July 6, 1989 (effective 30 days thereafter). Therefore, the Act was not in existence at the time of the installation by defendant, nor at the time of the release.

In Creighan, a former fireman sued the City of Pittsburgh under the Heart and Lung Act, cited in Creighan as 53 Pa. Stat. Ann. § 327, now codified as amended at 53 Pa. Stat. Ann. § 637. The plaintiff sought recovery of benefits which became due after the effective date of the Heart and Lung Act, and the Supreme Court of Pennsylvania agreed that he was entitled to these benefits. The Court held that "an act is not retroactively construed when applied to a condition existing on its effective date even though the condition results from events which occurred prior to that date..." 132 A.2d at 871. The Supreme Court summarized its holding as follows:

The appellee is not claiming any benefits prior to the effective date of the Act but only thereafter. A recognition of appellee's claim does not require that we place a retroactive construction on the Act, but simply that we apply the Act to a condition which existed on the date when the Act became effective even though such condition resulted from events which occurred prior to its effective date.

132 A.2d at 870 (emphasis in original). Stated another way, the plaintiff was able to recover because the condition continued to exist after the effective date of the act, and it was the condition, and not any transaction or occurrence which caused the condition, which formed the basis for the recovery.

This principle has been applied by the courts of Pennsylvania in a number of instances. For example, in R & P Services, the Secretary of Revenue ordered the revocation of R & P's cigarette stamping agency and wholesale dealer licenses because of R & P's tax delinquency. 541 A.2d at 433. Following R & P's application for renewal of these licenses, the Department of Revenue amended its regulations regarding grounds for denial, suspension or revocation of licenses to include tax delinquency in any system administered by the Department. Id. The application for renewal was filed, and the tax delinquencies arose, prior to the effective date of the regulations. Id. The Commonwealth Court held:

The condition rendering an applicant for cigarette dealer licenses ineligible for those licenses under the amended regulations is a delinquency in the payment of any tax that is owed or in the filing of any tax form that must be filed. In the present matter, R & P had such delinquencies on and after the effective date of the amended regulations. Furthermore, it did not have a vested right to a cigarette stamping agent or wholesale dealer license for the fiscal year of 1986. Consequently, it can not be said that the amended regulations have been given retroactive effect. The fact that the taxes which were found to still be owing at the time its application for renewal of its licenses was denied had been due and owing prior thereto, does not mean that the amended regulations have been given retroactive effect.

541 A.2d at 435 (footnotes omitted).

In Commonwealth of Pennsylvania, Dept. of Labor and Industry, Bureau of Employment Security v. Pennsylvania Engineering Corp., 54 Pa. Commw. 376, 421 A.2d 521 (Pa. Commw. 1980), the Bureau sought recovery of amounts deducted from a back wage award by the employer, such sums representing amounts previously paid to the employees as unemployment compensation benefits. The employer laid off a number of employees who applied for and were granted unemployment compensation benefits. The employees brought labor grievances, and in May of 1977 an arbitrator awarded them back pay for the time they were out of work. On January 1, 1978, a statute requiring an employer to pay into the Unemployment Compensation Fund a deduction of unemployment compensation benefits from a back pay award became effective. Three of the workers were paid their back wages in December of 1977; the remainder were paid in February of 1978. 421 A.2d at 523.

The employer argued that, since the award was made before the effective date of the statute, requiring it to deposit the deducted amount would be an impermissible, retroactive application of the statute. The Commonwealth Court disagreed:

The transaction that triggers the legal liability is the employer's act of making the deduction from the back wage award. The fact of a back wage award, standing by itself, would create no liability under Section 704; nor would the fact that the employee has become ineligible for his past unemployment benefits because of such an award. The employer has no liability under Section 704 unless or until he makes a deduction from the award.

421 A.2d at 524.

In Commonwealth v. Barnes and Tucker Co., 455 Pa. 392, 319 A.2d 871 (Pa. 1974), the Commonwealth brought an action against a company which had engaged in deep mining operations between 1939 and 1969. 319 A.2d at 873. At issue, inter alia, was the applicability of 1970 amendments to the Clean Streams Law, 35 Pa. Stat. Ann. §§ 691.1 et seq. The Supreme Court first held that the Clean Streams Law only restated the common law, and did not create a new cause of action; at best, it could be said to have removed an exemption to a cause of action. 319 A.2d at 884-885. It added:

Even if liability for the discharge of mine drainage was made abatable for the first time under any theory by the 1970 amendments, a recognition of the Commonwealth's claim based thereon would not require that we place a retrospective construction on these amendments. Rather, we would be applying that section to a condition which existed on the date when the amendments covering discharges from abandoned mines became effective, even though such condition resulted from events which occurred prior to their effective date.

319 A.2d at 885 (citing Creighan).

A final example of the application of this principle is Gehris v. Commonwealth of Pennsylvania, Dept. of Transportation, 471 Pa. 210, 369 A.2d 1271 (Pa. 1977), in which a landowner sought reimbursement for appraisal expenses following the condemnation of property for highway improvements. The condemnation occurred before the effective date of a statute permitting condemnees to recover limited appraisal expenses, but the expenses were incurred after the effective date. 369 A.2d at 1272. The Supreme Court held:

The event which results in liability of the condemnor for reimbursement is the incurring of expenses; the taking of property is merely an antecedent act, albeit an important one, which puts the chain of events in motion. In this case the expenses were incurred after the effective date of [the statute]. Application of that section to these facts thus involves nothing more than a prospective operation of the statute. As in Creighan, appellant-condemnees are "not claiming benefits prior to the effective date of the Act but only thereafter."

Defendant argues that it is not an "owner, operator, landowner or occupier" under the Act. Clearly, defendant is not the owner of the tank which is alleged to have released the fuel oil, as it belonged to plaintiff. Moreover, plaintiff is the landowner, not defendant, and plaintiff occupied its own land. The only term which may apply to defendant is "operator."

Under the Act, "operator" is defined as "any person who manages, supervises, alters, controls or has responsibility for the operation of a storage tank." 35 Pa. Stat. Ann. § 6021.103 (emphasis added). Plaintiff argues that defendant altered the tank through the removal of the old tanks and the installation of the new tank. Again, we agree with plaintiff.

Under the Act, a "substantial modification" is defined as "an activity to construct, refurbish, restore or remove from service an existing storage tank piping or storage tank facility which alters the physical construction or integrity of the tank or tank facility." Id. The work performed by defendant falls within the definition of substantial modification.

No definition for "alter" is provided in the Act, so that it is given its ordinary meaning. See 1 Pa. Cons. Stat. Ann. § 1903(a). The ordinary meaning of alter is "to make different in some particular, as size, style, course, or the like; modify... to change; become different or modified." Random House Dictionary of the English Language 60 (2d ed. 1987) (emphasis added). Conversely, "modify" is defined as "to change somewhat the form or qualities of; alter partially; amend ..." Id. at 1236 (emphasis added).

Use of the word "modification" in the defined term "substantial modification" shows that it is a particular type of modification or alteration (since they are synonymous), one which defendant performed. Moreover, the definition provided for "substantial modification" clearly fits within the meaning of "alter" in its ordinary usage.

We recognize that an installer would not normally be considered an operator when the word is used in an ordinary manner. However, the definition provided in the Act includes "alter," a word which would not be used to define "operator" for its ordinary usage. The Act therefore broadens the definition of "operator" to include activities which normally would not be considered the operation of a storage tank.

We conclude that defendant's removal of old tanks and installation of new tanks made it an operator within the meaning of the Act.

Our website includes the main text of the court's opinion but does not include the
docket number, case citation or footnotes. Upon purchase, docket numbers and/or
citations allow you to research a case further or to use a case in a legal proceeding.
Footnotes (if any) include details of the court's decision.

Buy This Entire Record For
$7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.